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April 25, 2023 41 mins

The Supreme Court justices get lucrative book deals, luxe travel junkets, and the freedom to invest in almost anything they want – all with limited and forgiving disclosures. And one justice, Clarence Thomas, has routinely offered evidence of some of the Court’s most glaring conflicts of interest. ProPublica recently revealed a goldmine of gifts and financial favors Thomas has received from a prominent Texas businessman, Harlan Crow. Thomas also has a spouse who makes a living advocating for conservative causes that have also found their way to the court. How disinterested can the justices be ruling on weighty matters like corporate power, business competition, and the future of democracy when their own wallets are involved? Gabe Roth is the founder and executive director of Fix the Court, a nonpartisan advocacy group pushing for various court reforms, including new ethics guidelines.

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Speaker 1 (00:00):
I want to ask you something. What do you think
of financial conflict of interest?

Speaker 2 (00:04):

Speaker 1 (00:05):
Do you have any idea.

Speaker 3 (00:08):
When two people.

Speaker 2 (00:11):
Both are like, share a bank account and they want
to spend money on something, but that the person.

Speaker 1 (00:17):
Doesn't that's a good thought. What if I told you
it describes when powerful people like people who sit on
the Supreme Court have money or other things they own
and it might affect how they they rule on things.

Speaker 2 (00:35):
I don't think that's correct, and I don't think that
should happen.

Speaker 1 (00:39):
This is Crash Course, a podcast about business, political, and
social disruption and what we can learn from it. I'm
Tim O'Brien and that was my son Cooper helping me
set up today's Crash Course. The Supreme Court versus Greed.
Consider this. The Supreme Court justices get lucrative book deals
two million dollars for me, Cody Bear, and three million

per Sonia Sotomayor. They get lux travel, junkets, and the
freedom to invest in almost anything they want, all with
limited and forgiving disclosures. And one Justice Clarence Thomas, has
routinely offered evidence of some of the Court's most glaring
conflicts of interest. Pro Publica recently revealed a gold mine
of gifts and financial favors Thomas has received from a

prominent Texas businessman, Harlan Crowe. Thomas also has a spouse
who makes a living advocating for conservative causes that have
also found their way to the Court. How disinterested can
the justices be ruling on weighty matters like corporate power,
business competition, and the future of democracy when their own
wallets are involved. To help us figure out the Court's

ethical collisions, I invited Gabe Roth to join us. Gabe
is the founder and executive director of Fixed the Court,
a nonpartisan advocacy group pushing for various court reforms, including
new ethics guidelines. I wanted to come in at a
thirty five thousand foot level first to just ask you,

why should we even care about the financial dealings of
Supreme Court justices. They're stewards of the law, after all.
Can't they be trusted to manage their money in ways
that don't collide with their professional duties.

Speaker 4 (02:18):
No, we can't trust the justices just to be off
on their own without having any sort of ethical benchmark.
The justices are human beings, just like you and me
and anyone listening to this podcast. I think that the
members of Congress have put upon themselves some strict ethics rules,
and the executive branch has some fairly.

Speaker 3 (02:39):
Strict ethics rules as well.

Speaker 4 (02:41):
It's just the judiciary branch with the Supreme Court at
the top, that doesn't have the same type of travel
gift outside income reimbursement type rules that in this day
and age, it makes no sense, especially given how much
power they have. Forget about the reason that we're talking,
which is the Justice Thomas travel scandal, which I'm sure
we'll get to, but in this day and age where

they have just such outsize power, who can vote, who
wins presidential elections, who can get healthcare, who can live
or die, where we pray, all these things, of course
they should have to follow certain rules that show that
they're above board ethically.

Speaker 3 (03:14):
Makes sense.

Speaker 1 (03:15):
You know, the presidency is free from most of the
conflict of interest guidelines that govern the rest of the
federal government. And the argument behind that was you could
not come up with a reasonable set of ethics standards
that wouldn't end up hamstringing any president from being able
to carry out his or her duties. And over the years,

Justice Roberts the Chief Justice of the Supreme Court has
come up with a similar argument for the Court that
it shouldn't be constrained by these things because it would
get in the way.

Speaker 4 (03:49):
Look, there definitely are a few rules that presidents have
to follow in terms of you know, financial disclosure, the
Emolument's clause, and the Constitution that they can't get rich
off of their position. But I think that we've seen
that well. First of all, I mean, the judicial scandals
are just exploding, right. This is not just you know,
one time thing where a justice is getting on a

yacht or and we'll.

Speaker 1 (04:12):
Get to those. We'll enumerate a bunch of those which
I want to, But I just was philosophically wanted to
kind of explore this idea of is it constraining actually
to have to have tighter ethics guidelines?

Speaker 4 (04:25):
I don't think so, because it's not that what is
being requested from the justices is that difficult. I mean,
and there are people that want to impeach Thomas, which
is never going to happen, and remove him, which is
never going to happen, and they want him to resign,
which is never going to happen. You know, I think
that for the people who are living in a world
where Congress is divided fairly evenly, what people are talking

about reform wise are rules that would not necessarily constrain behavior. Right,
the justices would still be able to have friends, They'd
still be able to go on vacations, they still wouldn't
have to pay for certain vacations.

Speaker 3 (04:59):
It's just there's a.

Speaker 4 (04:59):
Certain level of luxury after which, to the average person
it seems that there's no way that there's no quid
pro quo involved, Like just the luxury of certain gifts
and perks just implies that there is some sort of
dishonest dealings. And I think it's just, you know, it's
the smell test. It's the history of corruption in the

United States across all three branches, both at the federal
and the state level. And you know, when I'm looking
at the proposals here to try to change things, no
one is saying, like, let's make it so the justices
have to live this monastic lifestyle. I don't think that's
what folks are saying. I think the folks are saying, like,
we need more disclosure and we need to make sure
that when these super lux things are happening, that you

can't just say, oh, I'm friends with the guy, and
that's why I don't have to report it.

Speaker 1 (05:48):
And the issue of financial conflicts of interest gets tangible
when we talk about them through examples, and I want
to identify some of those in which the conflict and
the problem of the conflict is really clear. And we'll
have to start, of course, today with Clarence Thomas. Clarence
Thomas took a number of luxury trips through the good
graces of Harlan Crowe. What was your first take when

you saw that it was revealed that he had gone
on any number of pricey trips on Crow's dime, and
that Crow is also given money to causes favored by
Clarence Thomas or to groups affiliated with Clarence Thomas.

Speaker 4 (06:27):
The first time that I saw that, I was shocked,
but also not that surprise, because we knew that this
relationship existed. To me, I didn't really understand the scope
or the opulence that was involved. It's one thing to
get a sixty four hundred dollars bronze statue from a guy.
It's a totally different thing to be given potentially million
dollars in free vacations.

Speaker 3 (06:48):
Over a number of years.

Speaker 1 (06:50):
And on top of it, to have the property that
your mother is living in Clarence Thomas's mother. Yes, that
purchased at above market rates and benefited Thomas's own relationship
with his mother as well as his wallet. She still
lives there, correct. Harlan Crow said he was doing it
to set up some sort of a nonprofit group.

Speaker 3 (07:10):
A museum for Thomas's childhood home or something.

Speaker 1 (07:12):
Yes, but mom is still living there. That's also fairly
egregious and startling conflict.

Speaker 4 (07:18):
I think it is, and that to me is the
clearest violation of federal law that we have here, right.
I think that the federal law says that you need
to report any sort of trips or gifts that you get,
except there's a personal hospitality exemption. If you read the law,
the personal hospitality exemption does not include transportation. So I
think at least the private plane trips should have been reported,
which is a violation. But even if you can sort

of squint really hard and construe the personal hospitality exemption
on a property and a plane could be a property, yeah,
jump through, you know, do all sorts of mental gymnastics
to figure out how those omissions were not violations of
the Federal Disclosure Law. But it is very clear in
the disclosure law that any real life state transaction that
is greater than one thousand dollars must be reported on

the disclosure and it's not there. I mean, it falls
off the disclosure about seven or eight years ago for
reasons that are not described. And you know, if you're
looking at it as a neutral observer, you're like, Oh,
a couple of lots in Liberty County, maybe the bank
repossessed them or something.

Speaker 3 (08:20):
But no, that was my assumption.

Speaker 4 (08:22):
I was again wrong, But that to me is a
clear violational law and there needs to be some follow
up from the Justice Department on that.

Speaker 1 (08:28):
And tell our audience briefly about the Federal disclosure lawn
and how that governs disclosure by the Supreme Court justices.

Speaker 3 (08:36):
Yeah, it's a really interesting story.

Speaker 4 (08:37):
I mean, it really goes back to the disclosure law
was signed by Jimmy Carter in nineteen seventy eight, but
some of the genesis into a decade prior at the
Supreme Court because there were two Supreme Court justices that
were taking in outside money and it became a scandal.
So pretty soon after that, then Chief Justice Burger had
his colleagues release details of their outside income, any money

that they received in the previous year. They put it
in a starting in nineteen seventy that went on for
a few years, and then after Watergate, Congress got on
the ball and said, look, we need an entire government
wide disclosure law that says what your investments are, what
you're buying, what you're selling, any outside income, any spousal jobs,
any large debts that you have, and any gifts, travel reimbursements,

free travel for food, transportation, entertainment, lodging, and that all
has to be listed on a report that's due every
May fifteenth. So the new ones are going to be
due soon and those are going to be coming out
hopefully in June. And it's a wealth of information that shows,
you know, okay, this justice went to this place with
this person, and then you can say, okay, did they

have any cases before the court? Is there any potential conflicts.
It's just a really good way. I mean, they could
easily be more detailed, and we can get into that,
but it's a good way of doing sort of basic accountability.

Speaker 3 (09:53):
So since nineteen eighty one January twelfth, nineteen eighty one.

Speaker 4 (09:56):
The justices have effectively sanctioned the financial disclosure process, and
they've been filling them out. Obviously, not all of them
are filling it out completely as they should, as we mentioned,
but they've been filling it out every year since.

Speaker 1 (10:08):
You know, this raises a couple of things. One is,
the obvious reason we do this is because any financial
relationship with someone else outside the court may affect impartiality
or rulings when matters come before the court that affects
those individuals. It's just a EON's old definition of why
financial conflicts of interests are problematic. But secondly, all of

this involves really is disclosure for the sake of disclosure.
There's not a larger architecture around this that either penalizes
them or actually precludes them from engaging in certain activities.
It's a very narrow set of rules, and there is
a conflict of interest regimen that affects everyone in the

federal judiciary except for the Supreme Court.

Speaker 2 (10:57):

Speaker 4 (10:58):
Yeah, there's a Code of Conduct and then there is
a Judicial Conduct and Disability Act.

Speaker 3 (11:01):
So just real quick. The Code of.

Speaker 4 (11:03):
Conduct, the origins of it date back more than a
century but changed many times from the twenties to the seventies,
and then in the early seventies, the Judicial Conference, the
policymaking body, worked with the ABA and officially codified it
for the lower court judges. And so that code says
very clearly, judges should not their impartiality shouldn't be questioned.

Speaker 3 (11:23):
They shouldn't engage in.

Speaker 4 (11:24):
Extracurricular activities that impugne their integrity or the integrity.

Speaker 3 (11:28):
Of the judiciary.

Speaker 4 (11:29):
They shouldn't engage in political activities, they shouldn't engage in
fundraising activities, and on and on. They should treat all
comers into their courtroom with decorum. And if you fly
out one of these rules, there are consequences if you're
a lower court judge. The Judicial Conduct and Disability Act,
so that was nineteen eighty. That was a few years
after Watergate and after the Code, and after the Financial
Disclosure Law went into effect. That law was signed in

nineteen eighty by President Carter. That basically allows anybody. The
first two words of the law are any person, so
anyone in the United States. It sees a federal judge,
not a Supreme Court justice, but one of the twenty
five hundred lower court federal judges doing something that impunes
the integrity of judiciary, they can file a complaint against
that judge and they go through a process. It's this

adjudicatory process. There's fact finding. You can even hire outside
investigators to look into the behavior of a judge if
a judge's found to have committed misconduct. They're all sorts
of punishments, censure, reprimand public and private, and have certain
cases taken away from you. You have to go to
sensitivity training, anti harassment training. And it's because these punishments
are not doled out that frequently. It's pretty embarrassing. When

you have to make some amends or have some restitution,
it becomes a major national story.

Speaker 3 (12:38):
It doesn't happen that often.

Speaker 1 (12:39):
Well, and yet none of this applies to the nine
Supreme Court justice.

Speaker 4 (12:43):
Why so that's a sort of age old question of
separation of powers judicial independence.

Speaker 3 (12:50):
Well, I think so two reasons.

Speaker 4 (12:51):
One is, the theory is that because the Constitution says
Congress creates the lower courts, then Congress can make rules
for the judication of complaints that exist within the lower courts.
So there is one Supreme Court. I mean, that's the
quote from Article three, Section one, there is one Supreme Court,
and then later on it says Congress can create the
lower court. So the theory is that it can make

the rules for the lower court. So nothing in the
Lass mentions the Supreme Court. And it was understood that
the Supreme Court sort of sits above the architecture that
was created by Congress, both from a structural perspective in
terms of how many lower courts there are and also
in terms of how a complaint process might work. The
other thing is, Okay, let's say that this process included

the justices. The justices are all equal, like I know,
there's been a lot of like misconceptions in the last
few weeks about Okay, the Chief Justice has to step
in and do X. He's first among equals, and it
would be a sort of an awkward situation and not
one especially knowing the personalities of the justices. I couldn't
really imagine like eight justices sanctioning Clarence Thomas, And how

would that even, Like what could they do?

Speaker 3 (13:55):
Like what would they like?

Speaker 4 (13:56):
They can't lower his salary, that's in the Constitution. They
can't take cases away from him. They can't call up
the House I mean, I guess it could call up
the House and say, hey, impeach him, but like they're
not going to.

Speaker 1 (14:06):
They have no internal process for reprimands exactly.

Speaker 4 (14:08):
And also what's so interesting about this conversation is that
a lot of the proposals that have been made in
response to this, it's like, Okay, we're not even talking
about in an internal process for Reprimand I was looking
at a bill today that Senator Murphy came out with
the Democrat from Connecticut that says, Okay, we want there
to be a Supreme Court Code of conduct, and the
second part of the bill says, okay, we're not going
to make you part of the complaint process.

Speaker 3 (14:30):
Just create some office.

Speaker 4 (14:32):
Somewhere in the court where there is the possibility that
complaints can be investigated. And there's a report that comes
out at the end of the year that says, these
are the issues related to ethics that the public brought
to the Court's attention, like no mention of reprimand no
mention of punishment, just like these are the issues the
American people are thinking about. And they're bristling at that, right,
I mean, the justices are wristling at that. So we

have a long ways to go.

Speaker 1 (14:54):
Well, the other thing that might be useful as a
self governing principle would be the concept of embarrassment or shame.
But Clarence Thomas even lets us down on that front.
When this whole thing with Harlan Crowe blew into the open,
Thomas was quiet, I think for a day or two,
and then suddenly what came from him and from the

Court was, well, Harlan Crowe is a friend, and under
our disclosure guidelines, I'm allowed to accept trips from friends.
So no problem here. And you sort of wonder how
many paupers Clarence Thomas is friends with if you know,
they can't get him on a yacht, or get him
on a plane, or give a bunch of money to Yale,
or buy property from his mother or from him. And again,

to me, it just erodes confidence that the justices take
these issues seriously enough that they don't come out with
a probably legalistically acceptable response, but one that is neither
ethically or morally very credible.

Speaker 4 (15:58):
We're asking for let's start with the bare minimum here
right again. I mean the serious proposals in Congress, the
serious proposals from groups no one's talking about taking power
away necessarily from the justices, or changing the way that
they hear cases, or you know, putting them in a
boat off in the Chesapeake Bay, which Congress could theoretically do.

It's just like, let's put you on par with the
rest of the judiciary and with the other top officials
and the other two branches. And that doesn't seem like
too big of an ask at all, all.

Speaker 1 (16:33):
Right, Gabe, speaking of money, I want to take a
short break to hear from one of our sponsors, and
then we'll come right back to you. We're back with
Gabe Roth of Fix the Court, and we're talking about
the Supreme Court and financial conflicts of interest. Gabe on
just one quick fix for some of these financial conflicts

of interest problems. Should justices just be forbidden from owning
individual stocks? Lousiness journalists, for example, myself included, are forbidden
from owning individual stocks. We can own funds and other instruments.
Why not just apply that rule of the court.

Speaker 3 (17:11):
Yeah, absolutely, I think that should be a rule.

Speaker 4 (17:13):
Last year, a law was passed that required judges and
justices stock transactions, details of which to be posted online
within forty five days, which is the stock Act, and
the justices and lower court judges were actually not part
of the Stock Act when it became law in twenty twelve,
so we just got the judges and justices added to
the Stock Act.

Speaker 3 (17:32):
But we're learning that even.

Speaker 4 (17:34):
Though there's this database, and even though there's this big
Wall Street Journal expose about judicial conflicts of interest in stock,
the judges, well forget the justice for now, but the
judges are not selling as much stock as they are buying.

Speaker 3 (17:45):
It's pretty even. So.

Speaker 4 (17:47):
You know, I had hoped that after the law was passed,
after the database came out, all these judges would say, oh, hey,
I'm going to sell off all my stock. I'd see
the conflicts that the Wall Street Journal brought out in
their piece, and I think I'm going to go sell
all my stocks.

Speaker 3 (17:59):
That has not happen. So because of.

Speaker 4 (18:01):
That, I am more of the view now now that
we have the evidence that guess banning individual stock ownership,
both for members of Congress.

Speaker 3 (18:09):
Which you know that had gained momentum last year but
sort of fell away.

Speaker 4 (18:12):
But yeah, I think the justices should be included and
lower court judges to be included as well, and there
should be some news about that. In a few weeks,
so stay tuned.

Speaker 1 (18:21):
I'm thinking of Chief Justice John Roberts and a big
block of Microsoft stock that he used to own. I
think he disposed of some of that. Let's start with
Roberts and just consider that as a case study.

Speaker 3 (18:33):
Oh yeah, I mean to me, it's ridiculous that justices
own stock.

Speaker 4 (18:37):
Right, there are one hundred different ways, especially nowadays, to
be engaged in the market without owning the stock at
individual companies, and Roberts owned quarter million, half a million
dollars of Microsoft stock for the first ten years he
was on the court.

Speaker 3 (18:50):
It made no sense.

Speaker 4 (18:51):
Again, Microsoft is not only a litigant before the Supreme
Court all the time, but Microsoft files amicus brief friends
of the Court brief so they're appearing in other ways.
There's no law right that says, Okay, if it's Microsoft
versus Dough and you own Microsoft, you have to recuse.
But if it's Intel versus Dough and you own Microsoft,
and Microsoft files a brief in favor of the Intel position,

you don't have to recuse, which is a ridiculous and
indefensible law. And not only that Microsoft got smart, they
stopped sending briefs in Intel cases, and in other tech
cases they had, they just spent money and to have
a third party trade association that they weren't supporting send
in cases and Intel and Oracle and Google and all
these other cases that would benefit them in other tech

companies if they won. So to me, it's not defensible.
Neil Gore Sutch, when he was nominated to be a
judge in the Tenth Circuit in the mid two thousands,
sold all of his individual stock. I think Clarence Thomas
has never owned individual stock. He might have owned one company.

Speaker 3 (19:47):
I think he might have.

Speaker 4 (19:47):
Owned like Berkshire Shares for a few years. But Justice
Ginsberg sold her stock pretty soon after joining the court.
Chief Justice Roberts actually sold two stocks a few weeks ago.
So now he's down to two companies, Thermo Fischer Scientific
and Lam Research.

Speaker 1 (20:03):
Okay, and this will bring us back to Clarence Thomas again.
But should justice has recused themselves from matters that intersect
with their spouse's professional pursuits.

Speaker 4 (20:14):
I think that depends. I mean, I hate to give
the lawyerly and I'm not even a lawyer, but I
guess I play one. On podcasts, I would say it depends.
I think that you know, there's a discrete difference between
say Jane Roberts, who's a recruiter and happens to have
recruited people who may work at firms who then have
cases before the court. It's sort of this like a
to b the seed relationship that was recently reported on

versus something where a spouse has a particular knowledge or
facts of the case. So when you're talking about the
attempt by Arizona Republicans to overturn the election results, there
Ginny was lobbying for Republicans in Arizona to do just that.
So that to me is a little bit more direct

in terms of either the actual content.

Speaker 3 (20:58):
Or per the federal law supposed to recuse.

Speaker 4 (21:00):
Even if a justice's quote impartiality might reasonably be questioned,
you and I are reasonable, well, at least I am.

Speaker 3 (21:06):
I think okay, you and I are reasonable.

Speaker 4 (21:09):
People, and I think that we would both say that
there is clearly a potential for conflict in the Genny
Thomas example, given her involvement with the elector's situation in Arizona.

Speaker 1 (21:19):
And well beyond that. Jenny Thomas was employed by the
Heritage Foundation, a conservative group that engages an activism around
issues it cares about. We know now that she was
texting with Donald Trump's chief of staff Mark Meadows prior
to the January sixth insurrection, raising alarm bells with Meadows
that somehow the election might have been stolen from Trump.

Clarence Thomas has had to rule on a number of
things that affect Donald Trump directly, including whether or not
to release his tax returns to Congress, and presumably some
of the litigation around January sixth may eventually end up
in the Supreme Court as well.

Speaker 4 (21:59):
And Jenny tom signed that letter saying that the January
sixth committee was treasonous.

Speaker 1 (22:03):
So correct, correct, So she is this sort of hornet's
nest of issues that conflict with the integrity and the
life and the domain of the Supreme Court. Shouldn't Clarence
Thomas her husband stay a mile away from anything that
affects anything that she's been doing.

Speaker 4 (22:22):
Yeah, I think in a large part, yes, I'm a
little bit more sympathetic to some of the Heritage Foundation
work because Heritage was not a litigant before the court.
Jinny didn't work on any of the amicus briefs that
Heritage put before the Court, and Heritage was not the
only group that was lobbying or agitating for just to

give an example, the repeal of Obamacare or the invalidation
of Obamacare by the Supreme Court. But in terms of
the scope of the amount of work that she has done,
that sort of can graft itself onto the work of
the Supreme Court, it is unique. At the same time,
it is completely reasonable to want her and any other
Supreme Court spouse to be able to do their job

in so far as they please, even if it's getting
close to the point and not reaching it. But I think, really,
to me, it's just the various scopes around January sixth
and trying to overturn the twenty twenty election that really
hits at the heart of the recusal law, especially when
even if you look further down on the recusal law,
it says justice shall recuse when their or their spouse's
interest might be impacted.

Speaker 3 (23:27):
We don't know who was paying Jenny Thomas to do
this work.

Speaker 4 (23:29):
It's very possible she was being paid to contact the
Arizona I mean, it's unclear really if she was paid
or not, but maybe she was paid to text with
Mark Meadows try to reach out to the Arizona, Wisconsin
electors and sign the letter about January sixth committee. So
to me, I think because that word interest is later
in the law, that to me also just gives more
credence to this view that he should have refused in

all January six related cases.

Speaker 1 (23:53):
Let's talk about some other conflicts of interests that come
to mind for you. An interesting example comes up with
sat I or right and booking big blocks of hotel
rooms for her and her family members. Talk to me
about that one.

Speaker 3 (24:07):

Speaker 4 (24:07):
So, as justices do, and you know we're getting into
that season right now, they give talks or asked to
give talks at commencements at universities. Justice Jackson actually was
just announced as the commencement speaker for both bu Law
and American Law towards the end of May, and so
back in twenty sixteen, Justice Sotomayor was asked to be
the commencement speaker at the University of Rhode Island where

someone close to her, I don't know if it's her godson,
but someone close to her was graduating. And she agreed,
but she did not put the trip on her annual
financial disclosure, which you know justices make mistakes.

Speaker 3 (24:39):
It's one trip.

Speaker 4 (24:40):
Well, it turned out to be actually six trips that
year that she forgot to put on her financial disclosure,
which we'll get to. But with the Rhode Island trip,
she was flown business class. She was given up to
eleven hotel rooms at the nicest hotel in the state
of Rhode Island. They purchased one hundred and fifty of
her books, which happens a lot when you go somewhere,
but based on the royal agreement, would have netted her

several hundred, if not one thousand, dollars. She had a
motorcade taking her all around town to and from the airport.
She got a robe and a collar thingy, mortar board,
I mean.

Speaker 1 (25:10):
Some of those things you can't hold against dr I think,
like a motorcade. She's a justice on the Supreme Court.
She gets a robe at an event. But when it's
her and possibly a couple of other people traveling together
and they're given a whole block of hotel rooms, presumably
taking up an entire floor, it raises an eyebrow.

Speaker 3 (25:27):
It does, and it wasn't reported.

Speaker 4 (25:29):
Like again, two things, One it should be reported and
two under the disclosure law, if you were a member
of Congress and you did the same thing that Sodomior did,
you would have to file a report thirty days after
that you got back from the trip that said exactly
how much was spent on your hotel block?

Speaker 3 (25:45):
Right, that's a big deal. The fact that we're not
even getting numbers.

Speaker 4 (25:49):
It's very different if you're giving someone a burger at
Burger's Bar versus you know, Filet Mignon, and if you're
staying at the residence end versus the Ritz. So I think,
to me, you know that that sort of was it
a really potent example of how short the judiciary's disclosure's
law are compared to those in the other branches.

Speaker 1 (26:09):
Should the Court should members of the Supreme Court refuse
to take speaking fees?

Speaker 3 (26:13):
Well, okay, so there.

Speaker 4 (26:15):
That's tough because I probably would have answered this question
differently a few years ago, in terms of sort of
a larger question of should justices be flown certain places
to give talks? I would have said, yeah, fine, great,
we love seeing the justices in public. I think it's
important for the American people to see justice in action
and to understand what our judiciary does.

Speaker 3 (26:32):
I mean, like them or had them.

Speaker 4 (26:34):
They're all nine smart, incredibly accomplished individuals, and I think
everyone would learn from their lives stories. But in recent
years I've become really, really concerned with the frequency with
which justices are going out and speaking solely to the
home team. So Justice Barrett when she leaves DC, she's
deeply conservative, She's going to Notre Dame. She's going to

the McConnell Center at the University of Louisville. She's teaching
at the Notre Dame program in London. Justice Kavanaugh is
being paid by George Mason University, a deeply conservative university,
and the Antonin Scalia School of Law. Neil Gore Sutch
is being paid by George Mason's School of Law. Justice
Alito was just in Rome and his trip was paid

for by the Religious Liberty Institute. Many of the justices
were recently at the Federalist Society National Convention at Union
Station in DC back in November. I think all the
conservative justices besides Roberts were there. And then on the left,
Justice Sotomayor has recently been at the American Constitution Society.
So now I'm a little concerned, Right, it wasn't this
stark in the past. I mean, Justice Ginsburg definitely gave

a lot of thoughts before the National Organization of Women
and the Democratic Women's Leadership Council and what have you.
And Scalia spoke to TEA party groups a couple of times,
and it went to a few Koch Brothers retreats. But
I think you would always have a Kennedy or an
O'Connor or a Briar or a Stewart or Stevens that
would sort of speak to both.

Speaker 3 (27:55):
Sides or two more neutral sites. So that is happening.

Speaker 4 (27:58):
Unfortunately, from my research, appears to be happening less and less,
and I just wish the justices would sort of see
the writing on the wall, see the lack of trust
that the American people has in them, and actually do
more try to speak to either neutral or more ideologically
heterogeneous audiences.

Speaker 1 (28:16):
They're supposed to cap their outside pay from non SCOTUS
related activities at thirty thousand dollars annually. Correct.

Speaker 4 (28:26):
Yeah, yeah, I think it's going to go up this
year to maybe thirty two. But but but you got
to remember the exemption, which is book royalties. So that's
how you know they're making buck and you know all
the different ways to earn money as a justice.

Speaker 3 (28:39):
I'm kind of okay with.

Speaker 1 (28:40):
That, like teaching, for example.

Speaker 4 (28:42):
So yeah, so teaching is captain about I think it's
thirty one thousand for this year.

Speaker 1 (28:46):
And that's fine. They're the best, arguably some of the
best legal minds in the country.

Speaker 4 (28:51):
And they're off for three months in the summer, right,
you know the old John Roberts quote the only people
in the country who get the summer off for school
children in Scotus justice, which is something Roberts said forty
years ago when he was working in the Reagan Justice
Department because at the time the justices were complaining about
their caseload when he was giving that rejoinder. And I
have no problem that they're able to earn thirty k
for outside teaching. You know, I think it would be

an incredible event to take a class. I mean, Justice
Kavanaugh was just in London teaching for Notre Dame and
Justice Barrett Iss going there in a couple of weeks.
You read some of the student comments or whatever, and
it's like it's life changing for them.

Speaker 3 (29:22):
So, you know, good for them.

Speaker 1 (29:24):
But you know, you mentioned book royalties. The book advances
often are massive. For example, Amy Cony Barrett, before I
think she even got sworn in as a Supreme Court justice,
landed a major book deal.

Speaker 4 (29:38):
Again, yeah, we want smart, capable individuals to be on
the federal bench. They are making a lot of money.
If you're a lower federal court judge, like like two
twenty circuit judge, it's like two forty Scotus, it's like
two sixty two eighty.

Speaker 1 (29:52):
That's a lot of money, though significantly lesson they'd make
in the private sector, presumably many millions less than they
would make in the private.

Speaker 4 (29:59):
Sector, dificantly less significantly this and I don't want to
be in a situation where the only people who in
the future are judges and justices are people who are
uber wealthy and can afford to be judges and justices.
And again, quarter million dollars is a ton of money,
but in a capitalistic society, which we are, thankfully to
your point, it's like a tenth of what they could
be making on the open market. I'm okay with them

trying to supplement that income via book royalties. I don't
love the fact that the justices are going to like
the conservative imprints of Penguin books like the Javelin Group
is getting them a deal with a conservative Like I
don't love how they're sort of like putting on team
colors for that section, but again because they could be
earning so much other money doing so many other things.

Speaker 3 (30:39):
But I think that you know, I'm okay with.

Speaker 1 (30:40):
This, Gabe. I want to take one more break to
hear from our sponsor, and then we'll come right back
to you, and we're back with Gabe. Rotha fixed the Court. Gabe.
We talked piecemeal about some different solutions to these various
collisions and conflicts. You've propose a number of them along

the way, lay out what you think would be a
handy set of reforms that would clean up some of
these problems that we're seeing.

Speaker 4 (31:11):
So, first of all, I do think that the justices
should be required to write and publish, after a public
comment period, a code of conduct for the Supreme Court,
so they have an expectation of what their behavior should
be in the public has an expectation of what the
justice's behavior should be.

Speaker 3 (31:27):
So I think that's number one.

Speaker 4 (31:28):
I think the second thing is the justices need to
follow the same rules when it comes to travel outside
income reimbursement and gifts and personal hospitality as the Senate
and the House does.

Speaker 2 (31:39):

Speaker 4 (31:39):
That means having an ethics office approve certain trips thirty
days before the trips happen. It means the sponsors sending
in forms to the approving office so they know, Okay,
it's not some crazy junket where everyone's just going to
goof off for a week. It's a three day trip
where we're going to talk about the jurisprudence of I
don't know, the death penalty or something. And then the

justices themselves, after they return from the trip would have
to say within thirty days instead of having one line
on their annual disclosure report, which may or may not
ever come out or comes out months or years later.
Instead they do the thirty day post trip report that says,
this is how much was spent on my lodging, This
is how much was spent on my meals, This is
how much was spent on my transportation. In addition, I
would like to see, as I mentioned, more transparency around

the public appearances of the justices, Like it's ridiculous to
me that the justices don't have I mean, they have
a press office, but they never tell us where they're
going and when they're going there. Obviously I don't need
to know if they're going to visit their grandkids or something,
but if they're speaking at a public university. Just like
when I worked for a governor, I put out a
press release the morning before saying, hey, you know the
governor is going to be on Long Island tomorrow. This

is when press avail is and this is where you
can set up your tripods or whatever. Justices should be
doing the same thing. To your other point, I think
they should obviously be selling their stocks and be more
cognizant of their conflicts or potential conflicts of interest. And
I mean the biggest reform for me is term element
on the court. And so eighteen years is sort of
agreed upon conservative liberal like nine justices and your justice

every two years nine times two is eighteen. That means
every presidential term there would be two new justices, so
there would be a constant churn. So I think that
means that justices would want a more queue to the
fifty yard line and their jurisprudence, so we're not having
this constant ping pong. And then you would have ways
of sort of having justices fade into the sunset, there
would be life tenured on lower courts the rest of
their lives. They just wouldn't be hearing cases on scotus.

A way to fade into the sunset, so we're not
stuck with them for forty years.

Speaker 1 (33:32):
You've pushed for other things like cameras in the court
room and greater media access to the process of the
court itself. And when we talked last year, I remember
you feeling pretty optimistic about the possibility of court reforms
coming through. How did that end up going from your
perspective a mixed bag.

Speaker 4 (33:52):
I mean, I think that we still have live streaming
in the Supreme Court and all thirteen regional federal courts
of appeals called the Circuit Court.

Speaker 3 (34:00):
That wasn't the case a couple of years ago.

Speaker 4 (34:01):
A couple of years ago, it was the Court in DC,
the DC Circuit, in the Court in San Francisco, the
Ninth Circuit. We're the only two that were live streaming
their cases. And now every court live stream their cases.
Only a couple do video, but all of them at
least do audio. So I think that's important, But.

Speaker 1 (34:16):
What about other reforms in addition to that? You know
what were you expecting in what happened?

Speaker 4 (34:21):
Sure, I was expecting that the Wall Street Journal article
that found that one hundred and thirty one lower court
judges were hearing six hundred and eighty five cases despite
a conflict of interest due to their stock ownership. I
was expecting reform to come from that, and it did.
So Now we get, just like members of Congress, within
forty five days of a stock transaction, we get a
report from the judges on this database, and their annual

financial disclosures also have to be posted online. It used
to be get them in a thumb drive several years
after the fact, but now you get them online in
a database, much like you do for members of Congress.
And the database is still lagging a little behind. It's
not totally filled up yet, but they're working on it.
So I think that was really important. And the other
reform that I was really hoping pass and came very
close to, got pulled at the last minute from the

Senate floor. It's a bill that would make PACER free.
So PACER is the system that exists where if you
want to read a filing in federal court, you can
go to Supreme Court dot gov and read every filing
that at the Supreme Court for years and years and
years for free. Lower courts, the ninety four trial courts,
the ninety bankruptcy courts, the thirteen Federal Courts of Appeals,

hundreds of thousands of cases.

Speaker 3 (35:25):
If you just want to.

Speaker 4 (35:25):
Read a single filing, a single page of a filing,
it will cost you ten cents just to read the
page on your computer screen. It's a static PDF, but
they charge you ten cents a page, which gets expensive
very quickly. The Judiciary makes one hundred and fifty million
dollars a year from that. So there was a bill
to make it free, to zero it out, and because
of some concerns over how to fill in one hundred

and fifty million dollar hole with other funding, it didn't pass.
But we're ramping up again and hopefully it'll pass in
this Congress because it's a tax on the American people
to the two of one hundred and fifty million dollars
to make us read static PDFs ten cents a pop.

Speaker 1 (35:59):
Yeah, we've talked about the media keeping an eye on
the Supreme Court. You and fix the Court have kept
an eye on the Supreme Court. Obviously, the Biden administration
conducted a review of the Court that included a number
of issues, including financial conflicts of interest, but there still
hasn't been a sweeping set of reforms around financial conflicts
and greater disclosure. There's a minimal baseline of disclosure. Can

the court be reformed from the outside or does it
have to be reformed from within.

Speaker 4 (36:25):
I think it's a combination, I really do. I think
that the Disclosure's law where now all the disclosures have
to be put online. I mean, to your point, they're
bare minimum, like bare bones, it's not a lot of information,
but at least they have to be put online.

Speaker 3 (36:37):
That was a law that Congress passed.

Speaker 4 (36:39):
The Supreme Court itself was actually considering putting their disclosures
on Supreme Court dot gov, but it didn't happen or whatever.
So I think it's going to take just more and
more agitating and more and more pro publica style reporting
to get things done. And I think John Robberts would
rather the courts police themselves and reform themselves. And he
is absolutely taking advantage of all the grid luck in Congress.

You know, he's more than happy that it's a divided
Congress and that it's very hard to get things passed.
But I think from an institutional integrity and trust perspective,
if him and his colleagues continue to be bullheaded and
not making any modernization and ethics changes, then the last
glimmer of faith that we have in the Court is

going to quickly fade away.

Speaker 1 (37:22):
Well, and that brings us, you know, in a way,
back to the Chief Justice again, John Roberts. Roberts has
also resisted the idea of an outside monitoring agencies such
as the Office of Government Ethics, which keeps an eye
on members of the federal government and potential financial conflicts.
He doesn't want an agency like that keeping tabs on
the Supreme Court.

Speaker 2 (37:43):

Speaker 4 (37:44):
I mean, the best quote is from Justice Ginsburg on
that she said, in response to a Chuck Grassley Senator
Grassley proposal for an inspector general, that sounds like some
sort of Soviet level politbureau or institution, which is ridiculous.
But you know, I think that he just believes that
he can they can police themselves. I mean, I don't
quite get it based on all of the evidence that

we've seen that.

Speaker 1 (38:07):
Just keeps coming out and out and out that they
actually aren't policing themselves exactly.

Speaker 4 (38:12):
And I think the other problem is is that he potentially,
you know, he doesn't want to set himself up for
failure because I don't know if he has the institutional backing,
and forget the jurorsprudential backing.

Speaker 3 (38:22):
He definitely doesn't have that anymore.

Speaker 4 (38:24):
Though he would go along with like ninety percent of
the conservative project, he just wouldn't do it so stridently.
He doesn't have the institutional backing that I think some
of his predecessors would have. So having any sort of
ethics body, you know, people would just flo out the rules,
and so what point would there be to have them?

Speaker 3 (38:38):
This is view's that's what I think.

Speaker 1 (38:40):
One last question for you, what have you learned about
financial conflicts on today's court that you didn't know about
or didn't understand when you first began fashioning yourself as
a very astute Supreme Court watchdog.

Speaker 3 (38:54):
I think there's just.

Speaker 4 (38:55):
Many ways to influence the court in which money is involved.
That this is the general public does and realize it
is a multi billion with a B dollar industry influencing
the justices. When you think, oh, they only hear seventy
cases a year, But on top of that they're turning
down fifty five hundred cases a year, and those are
decisions in and of themselves to turn down those cases.

I guess half of them are prisoners, so fine. Prisoner
petitions are generally not hurt by the court, so maybe
only twenty seven hundred petitions, But the rest of them
there are very high powered, very wealthy, moneyed interests.

Speaker 3 (39:26):
That are trying to get the justices to do X,
Y or z.

Speaker 4 (39:30):
Relationships are not always clear to how close the justices
are to these interests, but it's something that is worth
looking at, worth studying, and worth trying to reform, because
if not, it's not a good situation, just give it.

Speaker 3 (39:42):
I mean, the quantities of money are.

Speaker 4 (39:43):
Insane, so that to me just sort of implies maybe
not actual corruption, but the appearance is pretty bad.

Speaker 1 (39:50):
Gabe, we've run out of time. Thank you so much
for joining us. I hope you can come back soon.

Speaker 3 (39:54):
Would love to. Thanks Tim.

Speaker 1 (39:56):
Gabe Roth is the founder and executive director of Fix
the Court, a nonpartisan advocacy group. You can follow Gabe
and Fix the Court on Twitter at Gabe Underscore Wroth
and at Fix the Court. Here at Crash Course, we
believe that collisions can be messy, impressive, challenging, surprising, and

always instructive, as my son Cooper showed us when I
asked him to define financial conflicts, How would you explain
that in your own words?

Speaker 2 (40:27):
When somebody owns a possession, but they have to make
a decision on something else without decisions affected by their
other possession, that's awesome.

Speaker 1 (40:39):
I mean, I help you prepare, but that's really good.
Thank you, buddy, Love you, Love you. In today's Crash Course,
I learned the financial conflicts of interest on the Supreme
Court are glaring, that they should be addressed, but that
the Supreme Court doesn't seem to have much interest right
now in doing that. What did you learn? We'd love

to hear from you. You can quete at the Bloomberg Opinion,
handle at Opinion or me at Tim O'Brien using the
hashtag Bloomberg Crash Course. You can also subscribe to our
show wherever you're listening right now and leave us a
review that helps more people find the show. This episode
was produced by the indispensable Anamazarakis, moses On Dam and Me.

Our supervising producer is Magnus Hendrickson, and we have editing
help from Sage Bauman, Katie Boyce, Jeff Grocott, Mike Nitze
and Christine Vanden Bilard. Blake Maples does our sound engineering
and our original theme song was composed by Luis Gara.
I'm Tim O'Brien. We'll be back next week with another
crash course
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